Monday, November 16, 2009

Insider-outsider political discrimination

In Corey Airport Services v. Decosta (Edmonson, Birch, Cox), Corey, "a self-proclaimed political outsider," claimed that the City rigged the bidding for advertising services at the Atlanta airport so as to favor the "political elite." According to Corey, this decision violated the equal protection clause by differentiating among bidders based upon their political clout. The individual defendants successfully claimed qualified immunity. Reversing the district court's denial of summary judgment, the Eleventh Circuit held that precedent did not make clear that the defendants' actions violated any clearly established constitutional right. Indeed, the Court noted that Corey's "claims of insider-outsider political discrimination present not only novel factual circumstances, but also a novel question of law."

The third time is not the charm

In United States v. Livesay (Dubina, Birch, and 6th Circuit visitor Siler), the Court held that a probationary sentence for a former executive at Health South was an unreasonable sentence. Since this appeal represented the third government appeal (and remand), the Eleventh Circuit clarified that any probationary sentence in this case would be unreasonble in light of the magnitude and seriousness of Livesay's conduct. Wonder what will happen on remand . . . .

Tuesday, November 10, 2009

Capital habeas petition denied

In Pardo v. Sec'y, Florida Dept. of Corrs., the Eleventh Circuit (Birch, Black, Wilson) affirmed the denial of Pardo's capital habeas petition. Pardo, a former police officer, testified at trial that he killed the victims because they were drug dealers, "parasites" and "leeches" who had no right to be alive. Pardo also testified that after he killed each victim, he took a picture of the body to capture the victim's spirit and then burned the picture in a special ash tray. At the penalty phase, Pardo called himself a "soldier" and asked for the death penalty to be imposed. After considering the jury's verdict and the aggravating and mitigating circumstances, the trial court imposed the death penalty. On 2254 review, the Court rejected Pardo's competency claims, a claim of ineffective assistance of counsel premised on the competency claims, an ineffective assistasnce claim based on a severance argument, and a Brady claim.

Drugs don't grow on trees

In United States v. Brown, the Eleventh Circuit (Carnes, Fay, and 9th Circuit visitor Alarcon) analyzed a drug conspiracy centered around local marketplaces called "trees." In rejecting a severance argument, the Court found that Brown had forfeited that argument by failing to raise it before the district court. The Court next examined Brown's conspiracy conviction, set forth the law in the Eleventh Circuit surrounding conspiracies, and stressed that conspirators need not know each other but must only facilitate the conspiracy. Third, the Court found that Brown's convictions six years before the conspiracy charged in the indictment were not too remote for 404(b) purposes. The Court also upheld Brown's 924(c) conviction. As for co-defendant Hall, the Court rejected his material variance argument and affirmed on authentication grounds the district court's decision allowing the admission of a copy of a tape of a controlled buy.

Monday, November 2, 2009

A little something about everything

In United States v. Tate (Oct. 30, 2009, Carnes, Fay, and 9th Circuit visitor Alarcon), the Court addressed issues involving probable cause to search, the proper way to preserve a Batson challenge, and sufficiency of the evidence. It also concluded that Segarra -- which rejected the argument that section 924(c)'s "except" clause "means that if [a defendant's] mandatory minimum sentence for the drug offenses is greater than the mandatory minimum for the firearm offense, the two sentences cannot run consecutively" -- applies to a crime of violence, like bank robbery. (Note that Segarra rejects the Second Circuit's view and sides with every other circuit to have decided the issue.) Finally, the Court rejected Tate's substantive reasonableness challenge to his sentence.

Reservation of rights . . . the certified questions

In World Harvest Church v. GuideOne Mutual Insurance Co. (Oct. 30, 2009; Carnes, Fay, Alarcon, a 9th Circuit visitor), the Court certified to the Georgia Supreme Court three questions about the reservation of rights under an insurance policy. Here, GuideOne defended a lawsuit for almost a year, and then determined that there was no coverage under the policy. It stopped defending the suit, and the policy holder hired its own attorney. The plaintiff in that suit and the policy holder eventually settled for $1 million, and the policy holder then filed suit against GuideOne to treat the earlier judgment as covered under the policy. The Court needed answers to three questions: 1) Did the insurer effectively reserve its rights? (The Court believed that it did not.) 2) Does the waiver and estoppel doctrine require a showing that the insured was actually prejudiced by the insurer's assumption of the defense? and 3) If actual prejudice must be shown, does this case show it?

Inquiring minds may want to know what the World Harvest Church did. Gause, a member of that church, ran a Ponzi scheme with another man, causing investors to lose about $165 million. Gause donated a great deal of money to the church, including a $1 million wire transfer to a Cayman Islands bank account. A receiver in the criminal case against Gause sought return of $1.8 million in donations, and when the church declined, this case ensued.

The question is moot

In Beta Upsilon Chi v. Machen (Oct. 27, 2009, Tjoflat, Edmonson, Hill), the Court discussed at length the University of Florida's nondiscrimination policy for registered student organizations and Beta Upsilon Chi's Christian focus . . . and then found that the controversy was moot when UF changed its policy and allowed Beta Upsilon Chi to become a registered student organization. The case contains a nice summary of the law of justiciable controversies, including voluntary cessation.